U.S. Citizenship and Immigration Services will begin receiving employment authorization applications from certain H-4 spouses beginning May 26th. In anticipation of a surge of applications, the agency has temporarily suspended premium processing for H-1B extensions for two months, beginning on the same day. Full instructions have not yet been posted, but the agency will likely update things on May 26th. It is possible that processing may be slow at first, and a surge in work may divert USCIS staff from other adjudications, creating temporary delays.
Here is USCIS’s most recent update, posted at www.uscis.gov:
Beginning May 26, 2015, certain H-4 dependent spouses of H-1B nonimmigrants can file Form I-765, Application for Employment Authorization, as long as the H-1B nonimmigrant has already started the process of seeking employment-based lawful permanent resident (LPR) status. Specifically, H-4 dependent spouses may apply for Employment Authorization if the H-1B visa holder:
– Is the principal beneficiary of an approved Form I-140, Immigrant Petition for Alien Worker; OR
– Has been granted H-1B status under sections 106(a) and (b) of the American Competitiveness in the Twenty-first Century Act of 2000 as amended by the 21st Century Department of Justice Appropriations Authorization Act. The Act permits H-1B nonimmigrants seeking lawful permanent residence to work and remain in the United States beyond the six-year limit on their H-1B status.
The Employment Authorization for Certain H-4 Dependent Spouses final rule (H-4 rule), effective on May 26, 2015, seeks to support the goals of attracting and retaining highly skilled foreign workers and minimizing the disruption to U.S. businesses resulting from H-1B nonimmigrants who choose not to pursue LPR status in the United States.
Although draft H-4 rule was published in May 2014, finalizing it is part of the executive actions on immigration that President Obama announced in November 2014. Extending eligibility for employment authorization to certain H-4 dependent spouses of H-1B nonimmigrants is one of the initiatives to modernize, improve and clarify visa programs to grow the U.S. economy and create jobs.
The Office of Management and Budget has reviewed the USCIS request for changes to the Form I-765 and its instructions (covered under OMB Control Number 1615-0040), resulting from the H-4 rule. We will update this Web page with guidance on filing Form I-765 on May 26, 2015, the date the H-4 rule becomes effective. Important note: USCIS will not accept Form I-765 submitted by H-4 dependent spouses until the H-4 rule takes effect on May 26, 2015. If you submit an application for employment authorization under the (c)(26) eligibility code before May 26, USCIS will reject the filing. We will return the Form I-765 and filing fee, and you will have to re-file the request when the rule takes effect.
U.S. businesses use the H-1B program to employ foreign workers in specialty occupations that require a Bachelor’s or higher degree and theoretical or technical expertise in specialized fields such as science, engineering and computer programming. In addition to specialty occupation workers, the H-1B classification applies to individuals performing services related to a Department of Defense cooperative research and development project or coproduction project, and individuals performing services of distinguished merit and ability in the field of fashion modeling.
Visit our H-1B Visa Web page for more information on eligibility for the H-1B program.